Federal immigration authorities may target schools and churches during enforcement operations following President Trump's revocation of a directive barring enforcement efforts in “sensitive” areas. The following information developed by the ACLU of Nebraska and the Center for Immigrant and Refugee Advancement (CIRA) is intended to help school officials support their students' rights and know their legal responsibilities.

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Schools' key responsibilities to students and families​

  • Schools are required to: 

    • Ensure fair and non-discriminatory treatment, including for students without current immigration status, or who have parents/guardians without current immigration status; 

    • Protect the privacy of students and families; and 

    • Protect the constitutional rights of students. 

  • The main rule to remember is that school policies which chill or limit participation of, or exclude altogether, students based on their or their parents' or guardians' actual or perceived immigration status are unconstitutional. 

  • Remember that administrators' responsibilities extend to overseeing the activities of all persons working in a school and directly with students and parents. 

Best practices

  • Do not inquire into immigration status when determining residency or age.  

  • Do not require solely documents for determining residency or age that only people with U.S. citizenship or current immigration status can have (e.g. U.S. passport, social security number, driver's license, etc.).  

  • Do not treat students or families differently based on race, religion, national origin, citizenship, immigration status, etc.  

  • Do review your policies on what information you collect from students and families. If there is no reason to collect it, don't.  

  • Do educate students and families about their rights and provide safety planning resources. 

Plyler v. Doe, Title IV and VI, and in loco parentis  

  • In Plyler v. Doe, 457 U.S. 202 (1982), the U.S. Supreme Court held that a state may not deny access to public K-12 education to any child residing in the state, whether present in the U.S. with or without current immigration status. 
  • Ultimately, the Plyler Court held that the Equal Protection Clause of the 14th Amendment did not allow the government to create barriers to education for particular groups – the same rationale as in Brown v Board of Education (desegregating schools). 
  • Title IV of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin, among other factors, by public elementary and secondary schools. 42 U.S.C. § 2000c-6.  
  • Title VI of the Civil Rights Act of 1964 prohibits discrimination by recipients of Federal financial assistance based on race, color, or national origin. 42 U.S.C. § 2000d. This also includes most private schools. 
  • In loco parentis is a principle of law that gives schools the responsibility to care for children in place of their parents while children are at school. 
  • Ultimately, school policies that chill or limit participation of, or exclude altogether, students based on their or their parents' or guardians' actual or perceived immigration status are unconstitutional. See this Department of Education (DOE) and Department of Justice letter for more guidance. 

FERPA (Family Education Rights and Privacy Act of 1974)  

  • FERPA, 20 U.S.C. § 1232g, generally prohibits schools and school districts that receive federal funds from releasing personal information contained in a student’s education records without the written consent of the parent or adult (18+) student. See also DOE regulations, 34 C.F.R § 99.1-99.67. 

  • FERPA also requires schools and school districts to maintain a record, within the student's record, of all individuals, agencies, and organizations that have requested the student's personal information.

  • Main exceptions to FERPA’s prohibitions: 1) valid subpoenas and 2) “school officials.” 

    1. The valid subpoena exception, 20 U.S.C. § 1232g(b)(2)(B), (b)(1)(J), requires a valid judicial subpoena. An Immigration and Customs Enforcement (ICE) administrative subpoena (“ICE subpoena”) is NOT valid.

      • Schools must make a reasonable effort to alert parents or adult students to a subpoena. See 34 C.F.R. § 99.31(a)(9)(ii). 

    2. The school officials exception, 20 U.S.C. § 1232g(b)(1)(A), allows "school officials" and outside entities performing an "institutional service or function" to obtain personal information from a student's file.  
      • This exception requires: 1) the school official is under direct control of the school at all times, 2) limiting access as needed to fulfill a “legitimate educational interest,” and 3) limiting use and redisclosure to original purpose. See 34 C.F.R. § 99.31(a)(1)(i)(B), § 99.31(a)(1)(ii) and § 99.33(a)(2). 
      • Law enforcement officers acting as a “school official” must use the information only as needed for the "legitimate educational interest" and may NOT redisclose to other law enforcement who are not acting as "school officials" for the same task. 

  • Schools have a legal obligation to make sure that any exceptions to FERPA are valid. Failure to do so may result in vulnerability to a lawsuit and loss of federal funding. 

Fourth, Fifth, and Sixth Amendments to the U.S. Constitution

  • Schools have an obligation to help students understand and utilize their rights. 

  • The 4th Amendment protects all people from unreasonable searches and seizures by the government, including ICE and Customs and Border Patrol (CBP).  

  • Law enforcement officers need a valid judicial warrant to search or seize a student or their belongings. An “ICE warrant” is NOT valid. 

  • If a law enforcement officer approaches you and tells you they need, want to talk to, or otherwise request a student, you have an obligation to protect the student's rights. Demand a valid judicial warrant and ensure your students are using their rights. 

  • You may open yourself up to lawsuits if you do not protect your students' Constitutional rights. 

Policy regarding immigration enforcement in schools  

  • ICE’s longstanding policy, which once treated schools as a “sensitive” or “protected” area has been rescinded as of January 20, 2025. However, ICE is still beholden to the requirements of the Fourth Amendment. ICE needs a valid judicial warrant to enter any private area of a school.  

  • Without the protection of this policy, parents will rely on schools more than ever to enforce their children’s rights. 

Suggestions 

  • Immediately elevate all law enforcement requests to the Superintendent and school district’s attorney.  

  • Revisit school policies for analyzing warrants, subpoenas, and court orders to ensure they are valid. 

  • Revisit school policies on what information you collect, and what information is considered directory information (not protected by FERPA). Remember, you cannot disclose information you do not collect. 

  • Revisit school policies on ensuring students know their rights and that they are utilizing them. 

  • Revisit any policies that might have a chilling effect on enrollment or attendance of students who do not have current immigration status, or who have family without current immigration status. Policies with such a chilling effect are unconstitutional. 

  • If ICE doesn't have a valid reason to be on school grounds, you are able to ask them to leave. 

Sample Subpoenas and Warrants

Image shows the difference between Judicial Subpoenas v. Immigration Subpoenas

  • A valid judicial subpoena requires 1) the name of the issuing court, 2) the signature of a judge or federal court clerk’s signature, 3) the target of the subpoena (e.g. FERPA information), and 4) the address of the target of the subpoena (e.g. the school).

  • An administrative subpoena (an “ICE subpoena” or “immigration subpoena”) is NOT valid. 

Image shows the difference between Judicial Warrants v. Immigration Warrants

  • A valid judicial warrant requires 1) the name of the issuing court, 2) the signature of a judge or magistrate, 3) the target of the warrant (the address AND area to be searched), and 4) a current date.

  • An administrative warrant (“ICE warrant” or “immigration subpoena”) will usually be titled “Warrant of Removal/Deportation,” will not contain the name of a court or the signature of a judge or magistrate, and is NOT valid.

Resources

Last updated January 24, 2025, 9:23 p.m. 

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